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EXHIBIT 2(k)(i)
ESCROW AGREEMENT
THIS ESCROW AGREEMENT, dated as of January 16, 1995, ("Escrow
Agreement"), is by and between INTERSTATE/XXXXXXX XXXX CORPORATION, a North
Carolina corporation ("Underwriter"); SOUTHEAST INTERACTIVE TECHNOLOGY FUND I,
LLC, a North Carolina limited liability company, ("Issuer"); and FIRST UNION
NATIONAL BANK OF NORTH CAROLINA, a national banking association, as Escrow
Agent hereunder ("Escrow Agent").
BACKGROUND
A. Issuer has engaged Underwriter as its agent to sell up to One
Thousand (1000) shares of limited liability company membership interest (the
"Shares") at Twenty-Five Thousand Dollars ($25,000) per Share on a "best
efforts" basis, pursuant to the Confidential Private Placement Memorandum of
the Issuer dated January 16, 1995 and attached hereto as Exhibit A (the
"Offering Document").
B. In accordance with the Offering Document, subscribers to the
Shares (the "Subscribers" and individually, a "Subscriber") will be required to
submit full payment for their respective investments at the time they enter
into subscription agreements.
C. In accordance with the Offering Documents, all payments
received by Underwriter in connection with subscriptions for Shares shall be
promptly forwarded to Escrow Agent, and Escrow Agent has agreed to accept, hold
and disburse such funds deposited with it and the earnings thereon in
accordance with the terms of this Escrow Agreement.
D. In order to establish the escrow of funds and to effect the
provisions of the Offering Document, the parties hereto have entered into this
Escrow Agreement.
STATEMENT OF AGREEMENT
NOW THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto,
for themselves, their successors and assigns, hereby agree as follows:
1. Definitions. The following terms shall have the following
meanings when used herein:
"Cash Investment" shall mean the number of Shares to be
purchased by any Subscriber multiplied by the offering price per Share of
$25,000 as set forth in the Offering Document.
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"Cash Investment Instrument" shall mean a check, money order
or similar instrument, made payable to "First Union National Bank as Escrow
Agent for Southeast Interactive Technology Fund," in full payment for the
Shares to be purchased by any Subscriber.
"Escrow Funds" shall mean the funds deposited with Escrow
Agent pursuant to this Agreement, together with any interest and other income
thereon.
"Minimum Offering" shall mean Four Hundred (400) Shares.
"Minimum Offering Notice" shall mean a written notification,
signed by Underwriter, which shall specify that subscriptions for the Minimum
Offering have been received; that, to the best of Underwriter's knowledge after
due inquiry and review of its records, Cash Investment Instruments in full
payment for that number of Shares equal to or greater than the Minimum Offering
have been received, deposited with and collected by Escrow Agent; and that such
subscriptions have not been withdrawn, rejected or otherwise terminated.
"Pro Rata Basis," with respect to the allocation among
Subscribers of interest and other earnings held in the Escrow Funds, shall
mean, for each Subscriber, the Subscriber's Cash Investment multiplied by the
number of days the Cash Investment of such Subscriber was held in
interest-bearing investments pursuant to Section 6 hereof, multiplied by the
average yield earned on the Escrow Funds during such period of days.
"Shares" shall have the meaning set forth in the section of
this Escrow Agreement titled "Background".
"Subscriber" or "Subscribers" shall have the meaning set forth
in the section of this Escrow Agreement titled "Background".
"Subscription Accounting" shall mean an accounting of all
subscriptions for Shares received and accepted by Underwriter as of the date of
such accounting, indicating for each subscription the Subscriber's name, social
security number and address, the number and total purchase price of subscribed
Shares, the date of receipt by Underwriter of the Cash Investment Instrument,
and notations of any nonpayment of the Cash Investment Instrument submitted
with such subscription, any withdrawal of such subscription by the Subscriber,
any rejection of such subscription by Underwriter, or other termination, for
whatever reason, of such subscription.
2. Appointment of and Acceptance by Escrow Agent. Issuer and
Underwriter hereby appoint Escrow Agent to serve as escrow agent hereunder, and
Escrow Agent hereby accepts such appointment in accordance with the terms of
this Escrow Agreement.
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3. Deposits into Escrow.
a. Upon receipt by Underwriter of any Cash Investment
Instrument for the purchase of Shares, Underwriter shall forward to
Escrow Agent, by 12:00 noon of the next business day, the Cash
Investment Instrument for deposit into the following escrow account:
First Union National Bank of North Carolina
Charlotte, North Carolina
ABA # 000000000
ATTN: Corporate Trust Department
for: Southeast Interactive Technology Fund I, LLC
Escrow Account
Notify Xxxxx Xxxxxxxx (000) 000-0000
Each such deposit shall be accompanied by the following documents:
(1) a completed W-9 Form for each of the Subscribers to
which such deposit relates, containing such
Subscriber's name, social security number or taxpayer
identification number, address and other information
required for withholding purposes;
(2) a Subscription Accounting; and
(3) instructions regarding the investment of such
deposited funds in accordance with Section 6 hereof.
ALL FUNDS SO DEPOSITED SHALL REMAIN THE PROPERTY OF THE SUBSCRIBERS
ACCORDING TO THEIR RESPECTIVE INTERESTS AND SHALL NOT BE SUBJECT TO ANY LIEN OR
CHARGE BY ESCROW AGENT OR BY JUDGMENT OR CREDITORS' CLAIMS AGAINST ISSUER UNTIL
RELEASED TO ISSUER IN ACCORDANCE WITH SECTION 4(A) HEREOF.
b. Underwriter and Issuer understand and agree that all
checks and similar instruments received by Escrow Agent hereunder are
subject to collection requirements of presentment and final payment,
and that the funds represented thereby cannot be drawn upon or
disbursed until such time as final payment has been made and is not
longer subject to dishonor. Upon receipt, Escrow Agent shall process
each Cash Investment Instrument for collection, and the proceeds
thereof shall be held as part of the Escrow Funds until disbursed in
accordance with
Section 4 hereof. If, upon presentment for payment,
any Cash Investment Instrument is dishonored, Escrow Agent's sole
obligation shall be to notify Underwriter of such dishonor and to
return such Cash Investment Instrument to Underwriter to take whatever
action it deems necessary. Notwithstanding the foregoing, if for any
reason any Cash Investment Instrument is uncollectible after payment
of the funds represented thereby has been made by Escrow Agent, Issuer
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shall immediately reimburse Escrow Agent upon receipt from Escrow
Agent of written notice thereof.
4. Disbursement of Escrow Funds.
a. Completion of Minimum Offering. Subject to the
provisions of Section 10 hereof, Escrow Agent shall pay to Issuer the
liquidated value of the Escrow Funds, by certified or bank check or by
wire transfer, no later than five (5) business days following receipt
of the following documents:
(1) A Minimum Offering Notice;
(2) Subscription Accounting, substantiating the
sale of the Minimum Offering; and
(3) Such other certificates, notices or other
documents as Escrow Agent shall reasonably
require.
Notwithstanding the foregoing, Escrow Agent shall not be obligated to
disburse the Escrow Funds to Issuer if Escrow Agent has grounds to believe that
(a) Cash Investment Instruments in full payment for that number of Shares equal
to or greater than the Minimum Offering have not been received, deposited with
and collected by the Escrow Agent, or (b) any of the certifications set forth
herein or in the documents described above are incorrect or incomplete.
After the disbursement of Escrow Funds to Issuer pursuant to this
Section 4(a), this Agreement shall terminate. In the event Escrow Agent
receives any additional funds with respect to Shares after such termination,
Escrow Agent shall pay such additional funds to Issuer by certified or bank
check or wire transfer, no later than five (5) business days after receipt.
b. Rejection of Any Subscription or Termination of the
Offering. No later than five (5) business days after receipt by
Escrow Agent of written notice (i) from Issuer or Underwriter than
Underwriter intends to reject a Subscriber's subscription, (ii) from
Issuer or Underwriter that there will be no closing of the sale of
Shares to Subscribers, or (iii) from the United States Securities
Exchange Commission ("SEC") or any other federal or state regulatory
authority that a stop order has been issued with respect to the
Offering Document and has remained in effect for at least twenty (20)
days, Escrow Agent shall pay to the applicable Subscriber(s), by
certified or bank check and by first class mail, the amount of the
Cash Investment paid by each Subscriber, and shall pay as soon as
practicable to the applicable Subscriber(s), by certified or bank
check and by first class mail, each Subscriber's share of income
earned on the Escrow Funds (net of such Subscriber's share of
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expenses), each such share to be calculated on a Pro Rata Basis.
c. Expiration of Offering Period. Notwithstanding
anything to the contrary contained herein, if Escrow Agent shall not
have received a Minimum Offering Notice on or before May 31, 1995 (or
August 31, 1995 if on or before May 31, 1995 Issuer notifies Escrow
Agent in writing that Issuer has elected to extend the offering
period), Escrow Agent shall, within five (5) business days after such
date and without further instruction or direction from Underwriter or
Issuer, return to each Subscriber, by certified or bank check and by
first class mail, the Cash Investment made by such Subscriber, and
shall pay as soon as practicable to the applicable Subscriber(s), by
certified or bank check and by first class mail, each Subscriber's
share of income earned on the Escrow Funds (net of such Subscriber's
share of expenses), each such share to be calculated on a Pro Rata
Basis.
5. Suspension of Performance or Disbursement Into Court. If, at
any time, there shall exist any dispute between Underwriter, Issuer, Escrow
Agent, any Subscriber or any other person with respect to the holding or
disposition of any portion of the Escrow Funds or any other obligations of
Escrow Agent hereunder, or if at any time Escrow Agent is unable to determine,
to Escrow Agent's sole satisfaction, the proper disposition of any portion of
the Escrow Funds or Escrow Agent's proper actions with respect to its
obligations hereunder, or if Underwriter and Issuer have not within 30 days of
the furnishing by Escrow Agent of a notice of resignation pursuant to Section 7
hereof, appointed a successor Escrow Agent to act hereunder, then Escrow Agent
may, in its sole discretion, take either or both or the following actions:
a. suspend the performance of any of its obligations
under this Escrow Agreement until such dispute or uncertainty shall be
resolved to the sole satisfaction of Escrow Agent or until a successor
Escrow Agent shall have been appointed (as the case may be); provided,
however, that Escrow Agent shall continue to invest the Escrow Funds
in accordance with Section 6 hereof; and/or
b. petition (by means of an interpleader action or any
other appropriate method) any court of competent jurisdiction in
Charlotte, North Carolina, for instructions with respect to such
dispute or uncertainty, and pay into such court all funds held by it
in the Escrow Funds for holding and disposition in accordance with the
instructions of such court.
Escrow Agent shall have no liability to Underwriter, Issuer, any Subscriber or
any other person with respect to any such suspension of performance or
disbursement into court, specifically including any liability or claimed
liability that
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may arise, or be alleged to have arisen, out of or as a result of any delay in
the disbursement of funds held in the Escrow Funds or any delay in or with
respect to any other action required or requested of Escrow Agent.
6. Investment of Funds. Escrow Agent shall invest and reinvest
the Escrow Funds as Underwriter shall direct (subject to applicable minimum
investment requirements) in writing; provided, however, that no investment or
reinvestment may be made except in the following:
a. First Union Funds Treasury Market Portfolio; or
b. Fidelity Institutional Cash U.S. Treasury Portfolio.
If Escrow Agent has not received written instructions from Underwriter
at any time that an investment decision must be made, Escrow Agent shall invest
the Escrow Funds, or such portion thereof as to which no written instructions
have been received, in investments described in clause (b) above. Each of the
foregoing investments shall be made in the name of Escrow Agent in its stated
capacity as escrow agent. No investment shall be made in any instrument or
security that has a maturity of greater than twenty-four (24) hours unless such
instrument or security is specifically approved by the Issuer and may be
liquidated without penalty or loss of interest upon twenty-four (24) hours
notice. Notwithstanding anything to the contrary contained herein, Escrow
Agent may, without notice to Underwriter or Issuer, sell or liquidate any of
the foregoing investments at any time if the proceeds thereof are required for
any release of funds permitted or required hereunder, and Escrow Agent shall
not be liable or responsible for any loss, cost or penalty resulting from any
such sale or liquidation. With respect to any funds received by Escrow Agent
for deposit into the Escrow Funds or any written investment instruction of
Underwriter received by Escrow Agent after ten o'clock, a.m., Charlotte, North
Carolina, time, Escrow Agent shall not be required to invest such funds or to
effect such investment instruction until the next day upon which banks in
Charlotte, North Carolina are open for business.
7. Resignation and Removal of Escrow Agent. Escrow Agent may
resign from the performance of its duties hereunder at any time by giving ten
(10) days' prior written notice to Underwriter and Issuer or may be removed,
with or without cause, by Underwriter or Issuer, acting jointly in writing, at
any time by the giving of ten (10) days' prior written notice to Escrow Agent.
Such resignation or removal shall take effect upon the appointment of a
successor Escrow Agent as provided hereinbelow. Upon any such notice of
resignation or removal, Underwriter and Issuer jointly shall appoint a
successor Escrow Agent hereunder, which shall be a commercial bank, trust
company or other financial institution with a combined capital and surplus in
excess of $10,000,000. Upon the acceptance in writing of any appointment as
Escrow Agent hereunder by a successor Escrow
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Agent, such successor Escrow Agent shall thereupon succeed to and become vested
with all the rights, powers, privileges and duties of the retiring Escrow
Agent, and the retiring Escrow Agent shall be discharged from its duties and
obligations under this Escrow Agreement, but shall not be discharged from any
liability for actions taken as Escrow Agent hereunder prior to such succession.
After any retiring Escrow Agent's resignation or removal, the provisions of
this Escrow Agreement (shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Escrow Agent under this Escrow
Agreement.
8. Liability of Escrow Agent. Escrow Agent shall have no
liability or obligation with respect to the Escrow Funds except for Escrow
Agent's willful misconduct or gross negligence. Escrow Agent's sole
responsibility shall be for the safekeeping, investment, and disbursement of
the Escrow Funds in accordance with the terms of this Escrow Agreement. Escrow
Agent shall have no implied duties or obligations and shall not be charged with
knowledge or notice of any fact or circumstance not specifically set forth
herein. Escrow Agent may rely upon any instrument, not only as to its due
execution, validity and effectiveness, but also as to the truth and accuracy of
any information contained therein which Escrow Agent shall in good faith
believe to be genuine, to have been signed or presented by the person or
parties purporting to sign the same and to conform to the provisions of this
Escrow Agreement. In no event shall Escrow Agent be liable for incidental,
indirect, special, consequential or punitive damages. Escrow Agent shall not
be obligated to take any legal action or commence any proceeding in connection
with the Escrow Funds or any account in which Escrow Funds are deposited or
this Escrow Agreement, or to appear in, prosecute or defend any such legal
action or proceeding. Without limiting the generality of the foregoing, Escrow
Agent shall not be responsible for or required to enforce any of the terms or
conditions of any subscription agreement with any Subscriber or any other
agreement between Issuer, Underwriter and/or any Subscriber. Escrow Agent
shall not be responsible or liable in any manner for the performance by Issuer
or any Subscriber of their respective obligations under any subscription
agreement nor shall Escrow Agent be responsible or liable in any manner for the
failure of Issuer, Underwriter or any third party (including any Subscriber) to
honor any of the provisions of this Escrow Agreement. Escrow Agent may consult
legal counsel selected by it in the event of any dispute or question as to the
construction of any of the provisions hereof or of any other agreement or of
its duties hereunder, and shall incur no liability and shall be fully protected
from any liability whatsoever in acting in accordance with the opinion or
instruction of such counsel. Issuer shall promptly pay, upon demand, the
reasonable fees and expenses of any such counsel.
9. Indemnification of Escrow Agent. From and at all times after
the date of this Escrow Agreement, Issuer shall, to the fullest extent
permitted by law and to the extent provided herein, indemnify and hold harmless
Escrow Agent and each
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director, officer, employee, attorney, agent and affiliate of Escrow Agent
(collectively, the "Indemnified Parties") against any and all actions, claims
(whether or not valid), losses, damages, liabilities, costs and expenses of any
kind or nature whatsoever (including without limitations reasonable attorneys'
fees, costs and expenses) incurred by or asserted against any of the
Indemnified Parties from and after the date hereof, whether direct, indirect or
consequential as a result of or arising from or in any way relating to any
claim, demand, suit action or proceeding (including any inquiry or
investigation) by any person, whether threatened or initiated, asserting a
claim for any legal or equitable remedy against any person under any statute or
regulation, including, but not limited to, any federal or state securities
laws, or under any common law or equitable cause or otherwise, arising from or
in connection with the negotiation, preparation, execution, performance or
failure of performance of this Escrow Agreement or any transactions
contemplated herein, whether or not any such Indemnified Party is a party to
any such action, proceeding, suit or the target of any such inquiry or
investigation; provided, however, that no Indemnified Party shall have the
right to be indemnified hereunder for any liability finally determined by a
court of competent jurisdiction, subject to no further appeal, to have resulted
solely from the gross negligence or willful misconduct of such Indemnified
Party. If any such action or claim shall be brought or asserted against any
Indemnified Party, such Indemnified Party shall promptly notify Issuer in
writing, and Issuer shall assume the defense thereof, including the employment
of counsel and the payment of all expenses. Such Indemnified Party shall, in
its sole discretion, have the right to employ separate counsel in any such
action and to participate in the defense thereof, and the fees and expenses of
such counsel shall be paid by such Indemnified Party unless (a) Issuer agrees
to pay such fees and expenses, or (b) Issuer shall fail to assume the defense
of such action or proceeding or shall fail, in the reasonable discretion of
such Indemnified Party, to employ counsel satisfactory to the Indemnified Party
in any such action or proceeding, or (c) that named parties to any such action
or proceeding (including any impleaded parties) include both Indemnified Party
and Issuer, and Indemnified Party shall have been advised by counsel that there
may be one or more legal defenses available to it which are different from or
additional to those available to Issuer. All such fees and expenses payable by
Issuer pursuant to the foregoing sentence shall be paid from time to time as
incurred, both in advance of and after the final disposition of such action or
claim. The obligations of Issuer and Underwriter under this Section 9 shall
survive any termination of this Escrow Agreement and the resignation or removal
of Escrow Agent.
10. Compensation to Escrow Agent.
a. Fees and Expenses. Issuer shall compensate Escrow
Agent for its services hereunder in accordance with Exhibit B attached
hereto and, in addition, shall reimburse
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Escrow Agent for all of its reasonable out-of-pocket expenses,
including attorneys' fees, travel expenses, telephone and facsimile
transmission costs, postage (including express mail and overnight
delivery charges), copying charges and the like. All of the
compensation and reimbursement obligations shall be payable by Issuer
upon demand by Escrow Agent, provided that Escrow Agent's fees shall
be paid first out of earnings on the Escrow Funds. The obligations of
Issuer and Underwriter under this Section 10 shall survive any
termination of this Escrow Agreement and the resignation or removal of
Escrow Agent.
b. Disbursements from Escrow Funds to Pay Escrow Agent.
The Escrow Agent is authorized to and may disburse from time to time,
to itself or to any Indemnified Party from the Escrow Funds (to the
extent of Issuer's rights thereto), the amount of any compensation and
reimbursement of out-of-pocket expenses due and payable hereunder
(including any amount to which Escrow Agent or any Indemnified Party
is entitled to seek indemnification pursuant to Section 9 hereof.)
Escrow Agent shall notify Issuer of any disbursement from the Escrow
Funds to itself or to any Indemnified Party in respect of any
compensation or reimbursement hereunder and shall furnish to Issuer
copies of all related invoices and other statements.
c. Security and Offset. Issuer hereby grants to Escrow
Agent and the Indemnified Parties a security interest in and lien upon
the Escrow Funds (to the extent of Issuer's rights thereto) to secure
all obligations hereunder, and Escrow Agent and the Indemnified
Parties shall have the right to offset the amount of any compensation
or reimbursement due any of them hereunder (including any claim for
indemnification pursuant to Section 9 hereof) against the Escrow Funds
(to the extent of Issuer's rights thereto). If for any reason the
Escrow Funds available to Escrow Agent and the Indemnified Parties
pursuant to such security interest or right or offset are insufficient
to cover such compensation and reimbursement, Issuer shall promptly
pay such amounts to Escrow Agent and the Indemnified Parties upon
receipt of an itemized invoice.
11. Representations and Warranties; Legal Opinions.
a. Issuer makes the following representations and
warranties to Escrow Agent:
(1) Issuer is a limited liability company duly
organized, validly existing, and in good standing under the
laws of the State of North Carolina, and has full power and
authority to execute and deliver this Escrow Agreement and to
perform its obligations hereunder;
(2) This Escrow Agreement has been duly approved
by all necessary action of Issuer, has been executed by
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duly authorized managers of Issuer, and constitutes a valid and
binding agreement of Issuer, enforceable in accordance with
its terms.
(3) The execution, delivery and performance by
Issuer of this Escrow Agreement will not violate, conflict
with, or cause a default under the articles of incorporation
or bylaws of Issuer, any applicable law or regulation, any
court order or administrative ruling or decree to which Issuer
is a party or any of its property is subject, or any
agreement, contract, indenture, or other binding arrangement
to which Issuer is a party or any of its property is subject.
The execution, delivery and performance of this Agreement is
consistent with and accurately described in the Offering
Document, and the allocation of interest and other earnings to
Subscribers, as set forth in Sections 4(b) and 4(c) hereof,
has been properly described therein.
(4) No party other that the parties hereto have
and the prospective Subscribers have, or shall have, any lien,
claim or security interest in the Escrow Funds or any part
thereof. No financing statement under the Uniform Commercial
Code is on file in any jurisdiction claiming a security
interest in or describing (whether specifically or generally)
the Escrow Funds or any part thereof.
(5) Issuer hereby acknowledges and agrees that
the status of Escrow Agent is that of agent only for the
limited purposes set forth herein, and hereby represents and
covenants that no representation or implication shall be made
that the Escrow Agent has investigated the desirability or
advisability of investment in the Shares or has approved,
endorsed or passed upon the merits of the investment therein
and that the name of the Escrow Agent has not and shall not be
used in any manner in connection with the offer or sale of the
Shares other than to state that the Escrow Agent has agreed to
serve as escrow agent for the limited purposes set forth
herein.
(6) All of the representations and warranties of
Issuer contained herein are true and complete as of the date
hereof and will be true and complete at the time of any
disbursement from the Escrow Funds.
b. Underwriter makes the following representations and
warranties to Escrow Agent:
(1) Underwriter is a corporation duly organized,
validly existing, and in good standing under the laws of the
State of North Carolina, and has full power and
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authority to execute and deliver this Escrow Agreement and to
perform its obligations hereunder;
(2) This Escrow Agreement has been duly approved
by all necessary corporate action of Underwriter, has been
executed by duly authorized officers of Underwriter, and
constitutes a valid and binding agreement of Underwriter,
enforceable in accordance with its terms.
(3) The execution, delivery, and performance by
Underwriter of this Escrow Agreement will not violate,
conflict with, or cause a default under the articles of
incorporation or bylaws of Underwriter, any applicable law or
regulation, any court order or administrative ruling or decree
to which Underwriter is a party or any of its property is
subject, or any agreement, contract, indenture, or other
binding arrangement to which Underwriter is a party or any of
its property is subject. The execution, delivery and
performance of this Agreement is consistent with and
accurately described in the Offering Document, and the
allocation of interest and other earnings to Subscribers, as
set forth in Sections 4(b) and 4(c) hereof, has been properly
described therein.
(4) The deposit with Escrow Agent by Underwriter
of Cash Investment Instruments pursuant to Section 3 hereof
shall be deemed a representation and warranty by Underwriter
that such Cash Investment Instrument represents a bona fide
sale to the Subscriber described therein of the amount of
Shares set forth therein, subject to and in accordance with
the terms of the Offering Document.
(5) Underwriter hereby acknowledges that the
status of Escrow Agent is that of agent only for the limited
purposes set forth herein, and hereby represents and covenants
that no representation or implication shall be made that the
Escrow Agent has investigated the desirability or advisability
of investment in the Shares or has approved, endorsed or
passed upon the merits of the investment therein and that the
name of the Escrow Agent has not and shall not be used in any
manner in connection with the offer or sale of the Shares
other than to state that the Escrow Agent has agreed to serve
as escrow agent for the limited purposes set forth herein.
(6) All of the representations and warranties of
Underwriter contained herein are true and complete as of the
date hereof and will be true and complete at the time of any
disbursement from the Escrow Funds.
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12. Consent to Jurisdiction and Venue. In the event that any
party hereto commences a lawsuit or other proceeding relating to or arising
from this Agreement, the parties hereto agree that the United States District
Court for the Western District of North Carolina shall have the sole and
exclusive jurisdiction over any such proceeding. If all such courts lack
federal subject matter jurisdiction, the parties agree that the Superior Court
Division of the General Court of Justice of Mecklenburg County, North Carolina
shall have sole and exclusive jurisdiction. Any of these courts shall be
proper venue for any such lawsuit or judicial proceeding and the parties hereto
waive any objection to such venue. The parties hereto consent to and agree to
submit to the jurisdiction of any of the courts specified herein and agree to
accept service or process to vest personal jurisdiction over them in any of
these courts.
13. Notice. All notices and other communications hereunder shall
be in writing and shall be deemed to have been validly served, given or
delivered five (5) days after deposit in the United States mails, by certified
mail with return receipt requested and postage prepaid, when delivered
personally, one (1) day after delivery to any overnight courier, or when
transmitted by facsimile transmission facilities, and addressed to the party to
be notified as follows:
If to Issuer at: Southeast Interactive Technology Fund I, LLC
0000 Xxxx Xxxx Xxxxxx, Xxxxx 000
Xxxxxx, Xxxxx Xxxxxxxx 00000
ATTENTION: Xxxxx X. Xxxxxx
Facsimile Number: (000) 000-0000
If to Underwriter at:
Interstate/Xxxxxxx Lane Corporation
000 Xxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
ATTENTION: W. Xxxxx Xxxxxx, XX
Facsimile Number: (000) 000-0000
If to the Escrow
Agent at: First Union National Bank of
North Carolina, as Escrow Agent
Corporate Trust Department
000 Xxxxx Xxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxx, XX 00000-0000
ATTENTION: Xxxxx Xxxxxxxx
Facsimile Number: (000) 000-0000
or to such other address as each party may designate for itself by like notice.
14. Amendment or Waiver. This Escrow Agreement may be changed,
waived, discharged or terminated only by a writing signed by Underwriter,
Issuer and Escrow Agent. No delay or omission by any party in exercising any
right with respect hereto
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shall operate as a waiver. A waiver on any one occasion shall not be construed
as a bar to, or waiver of, any right or remedy on any future occasion.
15. Severability. To the extent any provision of this Escrow
Agreement is prohibited by or invalid under applicable law, such provision
shall be ineffective to the extent of such prohibition or invalidity, without
invalidating the remainder of such provision or the remaining provisions of
this Escrow Agreement.
16. Governing Law. This Escrow Agreement shall be construed and
interpreted in accordance with the internal laws of the State of North Carolina
without giving effect to the conflict of laws principles thereof.
17. Entire Agreement. This Escrow Agreement constitutes the
entire agreement between the parties relating to the acceptance, collection,
holding, investment and disbursement of the Escrow Funds and sets forth in
their entirety the obligations and duties of Escrow Agent with respect to the
Escrow Funds.
18. Binding Effect. All of the terms of this Escrow Agreement, as
amended from time to time, shall be binding upon, inure to the benefit of and
be enforceable by the respective heirs, successors and assigns of Underwriter,
Issuer and Escrow Agent.
19. Execution in Counterparts. This Escrow Agreement may be
executed in two or more counterparts, which when so executed shall constitute
one and the same agreement.
20. Termination. Upon the first to occur of the disbursement of
all amounts in the Escrow Funds or deposit of all amounts in the Escrow Funds
into court pursuant to Section 5 hereof, this Escrow Agreement shall terminate
and Escrow Agent shall have no further obligation or liability whatsoever with
respect to this Escrow Agreement or the Escrow Funds.
21. The Escrow Agent and any stockholder, director, officer or
employee of the Escrow Agent may buy, sell, and deal in any of the securities
of Issuer and become pecuniarily interested in any transaction in which the
Issuer may be interested, and contract and lend money to Issuer and otherwise
act as fully and freely as though it were not Escrow Agent under this
Agreement. Nothing herein shall preclude the Escrow Agent from acting in any
other capacity for the Issuer or for any other entity.
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14
IN WITNESS WHEREOF, the parties hereto have caused this Escrow
Agreement to be executed under seal as of the date first above written.
SOUTHEAST INTERACTIVE TECHNOLOGY
FUND I, LLC, Issuer
By: ______________________________
Manager
By: ______________________________
Manager
INTERSTATE/XXXXXXX LANE
CORPORATION, Underwriter
[CORPORATE SEAL] By:________________________________
Title:_____________________________
ATTEST:
__________________________
Secretary
FIRST UNION NATIONAL BANK OF NORTH
CAROLINA, AS ESCROW AGENT
By:________________________________
Title:_____________________________
- 14 -
15
Exhibit A
Offering Document
16
Exhibit B
Fees Payable to Escrow Agent
